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law" (b).

They are to "bend and conform their legal reason to the words of the Act of Parlia

Not to ment" (c). It is not their office to make the ficiencies. law (d), or to criticise the law (e), or to supply

what they may consider deficiencies on the part of the Legislature. Even if the words used in an Act of Parliament are so wide as to include cases which were probably not meant to be included, or so narrow as to exclude cases which were probably not meant to be excluded, the Courts must give effect to those words according to the ordinary rules of construction (f). "A casus omissus," says Buller, J., "can in no case be supplied by a Court of Law, for that would be to make laws" (g). Not to in- Nor are the Courts entitled to inquire how an Act of Parliament may have been passed, how far the parties affected by it may have had an opportunity of being heard (h), how far the forms of procedure which are prescribed by the Houses of Parliament may have been followed (i). If an Act of Parliament has been improperly obtained, the Legislature

quire how

statutes were

passed.

(b) 4 Inst. 41.

(c) Murrey v. Eyton, Sir T. Raymond, at p. 355.

(d) Weale v. West Middlesex Waterworks Co., 1 Jac. & Walk, at p. 371.

(e) "It does not become us to scan the wisdom of the provision which the Legislature have enacted." Per Lord Ellenborough, C.J., R. v. Staffordshire, 12 East, at p. 577.

(f) Notley v. Buck, 8 B. & C. at p. 164, per Lord Tenterden, C.J.; Nixon v. Phillips, 7 Ex. at p. 192, per Parke, B.

(g) Jones v. Smart, 1 T. R. at p. 52. See, too, Cobb v. Mid Wales Railway Co., L. R. 1 Q. B. 342.

(h) Earl of Shrewsbury v. Scott, 6 C. B. N. S. at p. 160, per Cockburn, C.J.

(i) Edinburgh Rail. Co. v. Wauchope, 8 Cl. & Fin. at pp. 723—5, per Lord Campbell.

alone can provide a remedy (k). The Courts cannot allow the authority of the Legislature to be impeached by a suggestion that an Act of Parliament has been obtained by fraud (1).

66

has not

been recognised.

These principles are now firmly established, and This rule lie at the very root of the distinction between always legislative and judicial functions. But they have not always been so clearly recognised. In days long past judges I think often invaded what we now consider the sole province of the Legislature. They interpreted Statutes to include cases which they assumed to think ought to have been included; thus not merely constituting themselves legislators, but generally also legislators ex post facto" (m). It was not only by such an extension of the language of Statutes that the judges of former times exposed themselves to this censure. They put forward a theory which made them not Ancient merely the expounders of statutes but the super- judicial visors of the Legislature. In some of the early suprecases and text-books we find it stated that if Parliament were to pass an Act which was contrary to the law of God or to the law of nature, or to common right and reason, the Common Law would declare that such an Act was void, and the Courts might treat it as a nullity. "If any Statute were As to stamade directly against the law of God, the Statute against the were void" (n). "Even an Act of Parliament made Law of

(k) Lee v. Bude & Torrington Rail. Co., L. R. 6 C. P. at p. 582, per Willes, J.

(1) Waterford Rail. Co. v. Logan, 14 Q. B. 672, 680; Stead v. Carey, 1 C. B. at p. 516, per Cresswell, J.

(m) Att.-Gen. v. Sillem, 2 H. & C. at p. 567, per Channell, B. (n) Doctor and Student, 18th edit., 15, 16.

theories of

macy.

tutes made

God.

natural

justice.

Against against natural Equity, as to make a man judge in his own case, is void in itself, for jura naturæ sunt immutabilia, and they are leges legum" (o). "When an Act of Parliament is against common right and reason or repugnant or impossible to be performed the Common Law will control it and adjudge such Act to be void" (p). "What my Lord Coke says in Dr. Bonham's case is far from any extravagancy, for it is a very reasonable and true saying that if an Act of Parliament should ordain that the same person should be party and judge, or, which is the same thing, judge in his own cause, it would be a void Act of Parliament, for it is impossible that one should be judge and party, for the judge is to determine between party and party, or between the Government and the party; and an Act of Parliament can do no wrong, though it may do several things that look pretty odd; for it may discharge one from his allegiance to the Government he lives under and restore him to the state of nature; but it cannot make one that lives under a Government judge and party” (q).

Modern refutations of that theory.

Against these expressions we may place the words of judges whose learning does not yield to that which was the boast of earlier generations, who have known how to maintain their independence but have never claimed supremacy. It is laid down by Coleridge, J., that although Parliament may have legislated under a misinterpretation

(0) Day v. Savadge, Hobart, 87.

(p) Bonham's case, 8 Rep. 118a.

(a) City of London v. Wood, 12 Mod. at pp. 687-8, per Lord Holt, C.J.

of the law of God, the Courts are bound to act upon the Statute which is brought before them (). It is stated by Blackburn, J., that although it is contrary to the general rule of law, not only in this country but in every other, to make a person a judge in his own cause, yet the Legislature can, and no doubt in a proper case would, depart from that general rule (s). And the principles which guide the Courts of Justice in their relations to the Legislature are expressed by Willes, J., in clear and cogent language: "We do not sit here as a Court of Appeal from Parliament. It was once said-I think in Hobart (t)-that if an Act of Parliament were to create a man judge in his own case the Court might disregard it. That dictum, however, stands as a warning rather than an authority to be followed. We sit here as servants of the Queen and the Legislature. Are we to act as regents over what is done by Parliament with the assent of the Queen, Lords and Commons? I deny that any such authority exists. The proceedings here are judicial, not autocratic, which they would be if we could make laws instead of administering them" (u).

(r) R. v. Chadwick, 11 Q. B. at p. 238.

(s) Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. at p. 110.

(1) Day v. Savadge, Hobart, 87.

(u) Lee v. Bude & Torrington Rail. Co., L. R. 6 C. P. at p. 582.

CHAPTER II.

Authority

of statutes

known to

the law.

THE AUTHORITY OF STATUTES.

THE first and most important matter to be conthe highest sidered with regard to statutes is their authority. That authority is the highest known to the law, and, in theory at least, and within its own province, is unlimited. An Act of Parliament, says Blackstone, is the exercise of the highest authority that this kingdom acknowledges upon earth (a). According to Lord Coke, "the highest and most binding laws are the statutes which are established by Parliament" (b); "of the power and jurisdiction of the Parliament for making of laws, it is so transcendent and absolute as it cannot be confined

be done by

either for causes or persons within any bounds" (c). What can Some of the early writers give instances of strange statutes. things which have been done by Acts of Parliament, and the list may be augmented by recent decisions. Lord Coke says, that a statute can enable daughters or heirs apparent of a man or woman to inherit during the life of their ancestor,

(a) 1 Blackstone's Commentaries, 186; 2 Stephen, 7th edit., 389. (b) 2 Inst. Proeme.

(c) 4 Inst. 36.

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